Disciplinary proceedings and concurrent police investigation

Posted on 20th May 2010

Case law

In a welcome decision for employers, the EAT has decided that employers have a wide discretion on whether to continue or postpone their own investigation when the police are also investigating the same issue.

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Care must always be taken to ensure that disciplinary proceedings do not prejudice the criminal proceedings

Secretary of State v Mansfield [2010]

Background

In April 2006 allegations were made against Mr Mansfield, a prison officer, that he had orchestrated violence among prisoners and planted drugs. Mr Mansfield was suspended on 2 May 2006 and the matter was referred to the police, who began an investigation.

An internal investigation also commenced in April 2006 but was adjourned until the police investigation and subsequent prosecution of Mr Mansfield had been completed. The charge relating to the orchestration of violence had been dropped during the police investigation and Mr Mansfield was found not guilty of the charge of planting drugs on 30 April 2007.

Little then happened until 27 June 2007 when Mr Mansfield was told by the Governor of the prison that his suspension regarding the planting of drugs would continue but the orchestrating violence allegation was dropped. On 2 August 2007 instructions were given for an internal investigation to take place. It did not start until 28 August 2007 and was concluded on 28 October 2007.

There was some discussion over who could chair a disciplinary hearing and whether the investigation had been done properly. These issues were resolved, and the disciplinary hearing began on 23 January 2008 with additional days on 31 January and 4 February 2008.

The decision to dismiss was eventually made on 6 February 2008.

The decision

The Employment Tribunal concluded that Mr Mansfield's dismissal was unfair because there had been a lengthy and unacceptable delay in the disciplinary proceedings leading up to the dismissal. In addition there was no genuine belief that Mr Mansfield was guilty of misconduct.

Overturning the decision, the EAT held that "a decision maker forming a view on whether disciplinary proceedings should be continued alongside a criminal investigation has a wide discretion" and the delay did not render the dismissal unfair. The EAT considered the employer's policy on conducting investigations alongside police investigations. The policy stated that "care must always be taken to ensure that disciplinary proceedings do not prejudice the criminal proceedings". The EAT also concluded that, as the witnesses were interviewed at the time and the witness statements taken by the police were available, it was not possible for Mr Mansfield to argue that he had been prejudiced by any delay in obtaining evidence.

Comment

There had been a delay of nearly two years before a decision was reached to dismiss Mr Mansfield. However, the employer's decision to adjourn its own investigations whilst a criminal prosecution progressed was not considered unreasonable. Given that the Acas Code of Practice on Disciplinary and Grievance Procedures provides that disciplinary investigations and hearings should be held 'without unreasonable delay' and suspension should be 'as brief as possible', before making any decision to postpone or adjourn internal investigations an employer should consider whether any prejudice might be suffered and whether the employee will be able to fully co-operate in any internal investigation. It is possible that the employee may be advised to make 'no comment' in an internal investigation to avoid prejudicing any police investigation or prosecution which will not assist matters at all. This should be balanced against the desire not to prejudice any criminal investigation, as well as a wish to conclude matters promptly.

Clear, concise and accurate information for employers and HR professionals

This High Court case highlights (again) why employers must take great care when considering whether to suspend an employee who is accused of gross misconduct allegations. Get it wrong and an unjustified ‘knee jerk’ suspension will be a breach of the implied term relating to mutual trust and confidence.

The test is not whether the employee can do the job but whether there was a reasonable and genuine belief that the employee was exaggerating their illness.

Posted 10th October 2016

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